Current through Register Vol. 51, No. 1, July 1, 2024
RELATES TO:
KRS
13B.140,
217.900(1),
218A.010(6),
304.13-167,
342.011(9),
342.640,
342.660,
351.010(1)(m)
NECESSITY, FUNCTION AND CONFORMITY:
KRS
304.13-167(6) requires the
Executive Director of the Office of Workers' Claims to promulgate
administrative regulations regarding a drug-free workplace program for Kentucky
employers to implement. This administrative regulation establishes the
requirements for employers to apply and be certified by the Office of Workers'
Claims for implementing a drug-free workplace program.
Section 1. Definitions.
(1) "Alcohol" means ethyl alcohol, hydrated
oxide of ethyl, or spirit of wine, produced from any source or
process.
(2) "Consortium" means an
entity, which may involve varied pools of employers and their employees,
established to provide cost-effective services to employers to help the
employers comply with drug-free workplace program requirements and may provide
employer education, supervisor training, and drug and alcohol testing at a
reduced cost to the employers who choose to participate.
(3) "Drug" means a controlled substance as
defined in
KRS
218A.010(6) and as
established in 902 KAR Chapter 55, including:
(a) Amphetamines;
(b) Cannabanoids/THC;
(c) Cocaine;
(d) Opiates;
(e) Phencyclidine (PCP);
(f) Benzodiazepines;
(g) Propoxyphene;
(h) Methaqualone;
(i) Methadone;
(j) Barbiturates;
(k) Synthetic narcotics;
(l) Illicit substances; and
(m) Volatile substances as defined by
KRS
217.900(1).
(4) "Drug or alcohol rehabilitation program"
means a service provider that provides confidential, timely, and expert
identification, assessment, treatment, and resolution of employee drug or
alcohol abuse.
(5) "Drug test" or
"test" means a chemical, biological, or physical instrumental analysis
administered by a qualified laboratory, for the purpose of determining the
presence or absence of a drug or its metabolites or alcohol pursuant to
standards, procedures, and protocols established by the U.S. Department of
Health and Human Services' Substance Abuse and Mental Health Services
Administration (SAMHSA), at
http://www.workplace.samhsa.gov/.
(6) "Employee" is defined by
KRS
342.640.
(7) "Employee Assistance Program" means an
established program providing:
(a)
Professional assessment of employee personal concerns;
(b) Confidential and timely services to
identify employee alcohol or substance abuse;
(c) Referrals of employees with alcohol or
substance abuse for appropriate diagnosis, treatment, and assistance;
and
(d) Follow-up services for
employees who participate in a drug or alcohol rehabilitation program and are
recommended for monitoring after returning to work.
(8) "Employer" means a corporation,
partnership, sole proprietorship, or other business entity doing business in
Kentucky which is required to comply with the provisions of KRS Chapter 342 or
voluntarily covers excluded employees pursuant to
KRS
342.660.
(9) "Executive director" is defined by
KRS
342.0011(9).
(10) "Illicit substance" is defined by
KRS
351.010(1)(m).
(11) "Medical review officer" or "MRO" means
a licensed physician with knowledge of substance abuse disorders, laboratory
testing, chain of custody, collection procedures, the ability to verify
positive, confirmed test results, and the necessary medical training to
interpret and evaluate a positive test result in relation to the person's
medical history or any other relevant biomedical information.
(12) "Office" is defined by
KRS
342.0011(8).
(13) "Qualified laboratory" means a
laboratory certified in accordance with the National Laboratory Certification
Program (NLCP) by the United States Department of Health and Human Services'
Substance Abuse and Mental Health Services Administration (SAMHSA).
(14) "Reasonable suspicion testing" means
drug or alcohol testing that meets the requirements in Section 3 of this
administrative regulation.
(15)
"Serious physical injury" means an injury which has a reasonable potential to
cause death.
Section 2.
Applicability.
(1) Employer participation in
the Drug-Free Workplace Program shall be voluntary.
(2) All drug or alcohol testing shall be
conducted:
(a) In accordance with applicable
federal and state requirements, as utilized in each part of the testing
process; and
(b) As required by
this administrative regulation for participants in the Drug-Free Workplace
Program.
Section
3. Requirements for a Drug-Free Workplace Program. To obtain
certification for a drug-free workplace program, an employer shall comply with
all of the following minimum requirements:
(1)
The program shall include alcohol and substance abuse education and awareness
training for employees and supervisors which:
(a) Provides to all employees written
materials explaining the employer's policies and procedures with respect to the
drug-free workplace program;
(b)
Provides each employee at least one (1) hour of initial, and at least thirty
(30) minutes refresher each year thereafter, of alcohol and substance abuse
education and awareness training which shall include, at a minimum, information
concerning:
1. Alcohol and drug
testing;
2. The effects of alcohol
and drug use on an individual's health, work, and personal life;
3. The disease of alcohol or drug
addiction;
4. Signs and symptoms of
an alcohol or drug problem;
5. The
role of coworkers and supervisors in addressing alcohol or substance abuse;
and
6. Referrals to an employee
assistance program; and
(c)
1.
Provides all supervisory personnel, in addition to the training specified in
paragraph (b) of this subsection, with thirty (30) minutes each year of alcohol
and substance abuse education and awareness training.
2. The training shall include, at a minimum,
information on:
a. Recognizing the signs of
alcohol and substance abuse in the workplace;
b. How to document signs of employee alcohol
or substance abuse;
c. How to refer
employees to an employee assistance program or other alcohol and substance
abuse treatment; and
d. Legal and
practical aspects of reasonable suspicion testing for the presence of drugs and
alcohol;
(2) Within the program, reasonable suspicion
testing shall be based on a belief that an employee is using or has used drugs
or alcohol in violation of the employer's policy, drawn from specific objective
and articulable facts and reasonable inferences drawn from those facts in light
of experience, training, or education. The reasonable suspicion testing shall
be based upon:
(a) While at work, direct
observation of drug or alcohol use or of the physical symptoms or
manifestations of being under the influence of a drug or alcohol;
(b) While at work, abnormal conduct, erratic
behavior, or a significant deterioration in work performance;
(c) A report of drug or alcohol use provided
by a reliable and credible source;
(d) Evidence that an individual has tampered
with a drug or alcohol test during employment with the current covered
employer;
(e) Information that an
employee has caused, contributed to, or been involved in an accident while at
work; or
(f) Evidence that an
employee has used, possessed, sold, solicited, or transferred illegal or
illicit drugs or used alcohol while on the covered employer's premises or while
operating the covered employer's vehicle, machinery, or equipment;
(3) The program shall include
breath alcohol and urine drug testing to which job applicants or employees
shall be required to submit at the following times:
(a) For urine drug testing:
1. After conditional offer of
employment;
2. After being selected
using a statistically valid, unannounced random method;
3. Upon reasonable suspicion of prohibited
drug use;
4. At follow-up testing
at least once per quarter for one (1) year after the employee's successful
completion of an employee assistance program for drug-related problems, or a
drug rehabilitation program, or as recommended by the person administering the
drug rehabilitation program; and
5.
Following an accident on the premises of the employer or in the course of
employment for the employer which requires off-site medical attention be given
to a person.
(b) For
breath alcohol testing:
1. After conditional
offer of employment;
2. Upon
reasonable suspicion of prohibited alcohol use;
3. Following an accident on the premises of
the employer or in the course of employment for the employer which requires
off-site medical attention be given to a person; and
4. Follow-up testing at least once per
quarter for one (1) year after the employee's successful completion of an
employee assistance program for alcohol-related problems, or an alcohol
rehabilitation program, or as recommended by the person administering the
alcohol rehabilitation program;
(4) The office may issue a certification for
a program that provides for alcohol and drug testing of other fluids or
products of the human body capable of revealing the presence of drugs or
alcohol if the testing is as accurate as, and equivalent to, breath alcohol and
urine drug testing and complies with this section of this administrative
regulation;
(5) The program shall
include the minimum testing protocol which shall include:
(a) A maximum acceptance level of breath
alcohol concentration, which shall be a concentration of four-hundredths
(0.04); and
(b) An eleven (11)
panel urine test that shall include testing for the following substances:
1. Amphetamines;
2. Cannabanoids/THC;
3. Cocaine;
4. Opiates;
5. Phencyclidine (PCP);
6. Benzodiazepines;
7. Propoxyphene;
8. Methaqualone;
9. Methadone;
10. Barbiturates; and
11. Synthetic narcotics;
(6) The program shall provide that
the collection of samples and administration of drug and alcohol tests shall
follow all standards, procedures and protocols set forth by the U.S. Department
of Health and Human Services' Substance Abuse and Mental Health Administration
(SAMHSA), at
http://www.workplace.samhsa.gov/;
(7) The program shall provide that the test
results have been performed by a qualified laboratory;
(8) The program shall include medical review
of test results as follows:
(a)
1. All test results shall be submitted for
medical review by the medical review officer (MRO), who shall consider the
medical history of the employee or applicant, as well as other relevant
biomedical information.
2. If there
is a positive test result, the employee or applicant shall be given an
opportunity to report to the MRO the use of any prescription or
over-the-counter medication.
(b)
1. If
the MRO determines that there is a legitimate medical explanation for a
positive test result, the MRO shall certify that the test results do not
indicate the unlawful use of alcohol or a controlled substance.
2. If the MRO determines, after appropriate
review, that there is not a medical explanation for the positive test result
other than the unauthorized use of alcohol or a prohibited drug, the MRO shall
refer the individual tested to an employee assistance program or to a personnel
or administrative officer for further proceedings in accordance with the
employer's drug-free workplace program.
(c) Determinations concerning the use of
alcohol or a controlled or illicit substance shall comply with all procedures
outlined in the U.S. Department of Health and Human Services' Substance Abuse
and Mental Health Services Administration (SAMHSA) "Medical Review Officer
Manual for Federal Agency Workplace Drug Testing Programs";
(9) The program shall include an
employee assistance program (EAP) for its employees and supervisory personnel.
(a) The employer shall:
1. Establish the EAP as a part of its
internal personnel services; or
2.
Contract with an entity that provides EAP services.
(b) The employer's participation in a
consortium shall satisfy this requirement; and
(10) The program shall include
controlled-access maintenance at the employer's place of business of records
including the names and position titles of all employees and supervisory
personnel trained under the program, and the names of all persons who presented
alcohol and substance abuse training, for review by the office.
Section 4. Confidentiality of
records. Records of drug or alcohol test results, written or otherwise,
received by the employer shall be confidential communications and shall not be
disclosed by the employer to any party unless:
(1) A written release of information is
granted and signed by the employee; or
(2) The release is ordered by a court of
competent jurisdiction.
Section
5. Application Requirements. Employers who desire a drug-free
workplace certification pursuant to
KRS
304.13-167 shall submit to the office an
initial notarized application, and annually thereafter, in the form of an
affidavit executed by the owner or chief executive officer of the business
establishing that it provides a drug-free workplace by:
(1) Providing a copy of a statement to each
employee and posting the statement in a prominent place at each worksite. The
statement shall:
(a) Notify employees that the
unlawful manufacture, distribution, dispensation, possession, or use of alcohol
or a controlled or illicit substance is prohibited in the workplace;
(b) Identify methods that may be used by the
employer to determine if violations by an employee exists; and
(c) Specify the actions that will be taken
against employees for violations of the prohibition;
(2) Establishing an alcohol and substance
abuse education and awareness training program which complies with the minimum
requirements of Section 3 of this administrative regulation to inform employees
and supervisory personnel about:
(a) The
dangers of drug abuse in the workplace;
(b) The role of co-workers and supervisors in
addressing alcohol or drug abuse;
(c) The employer's policy of maintaining a
drug-free workplace;
(d) Available
drug counseling, rehabilitation, and employee assistance programs;
and
(e) The penalties for
violations of the drug-free workplace policy;
(3) Establishing a program that includes
alcohol and drug testing performed as established in Section 3 of this
administrative regulation;
(4)
Providing an Employee Assistance Program which shall:
(a) Include:
1. Professional assessment of employee
personal concerns;
2. Confidential
and timely services to identify employee drug or alcohol abuse;
3. Referrals of employees for appropriate
diagnosis, treatment, and assistance with regard to employee alcohol or
substance abuse; and
4. Follow-up
services for employees who participate in a drug or alcohol rehabilitation
program and are recommended for monitoring after returning to work;
and
(b) Provide services
regardless of race, color, religion, national origin, disability, sex, or
age;
(5) Verifying that
the frequency and duration of each employee and supervisor training session
meets the requirements of Section 3 of this administrative
regulation;
(6) Verifying that all
employees have participated, or shall participate during the calendar year, in
the required alcohol and substance abuse education and awareness training
sessions;
(7) Maintaining a
drug-free workplace throughout its workers' compensation insurance policy
period; and
(8) Maintaining the
drug-free workplace program in compliance with all federal and state laws and
regulations that apply to that particular business.
Section 6. Required Documentation.
(1) An employer's initial application shall
be accompanied by copies of the following documents:
(a) The employer's written drug-free
workplace policy;
(b) Documents
provided to employees regarding the drug-free workplace program if different
from the policy; and
(c) The
following, if not included in the drug-free workplace policy:
1. A statement identifying each alcohol and
drug test that will be conducted;
2. A statement describing the employer's
Employee Assistance Program;
3. A
description of the alcohol and substance abuse education and awareness training
program for employees and supervisory personnel; and
4. A statement describing the confidentiality
of the employer's drug-free workplace program.
(2) Employers shall attach the documents
listed in subsection (1) to a renewal application only if a substantive change
or amendment has been made to the material filed with the initial
application.
Section 7.
Certification of Drug-Free Workplace Procedure.
(1)
(a) If
the office receives an incomplete application of certification of drug-free
workplace, the office shall notify an employer in writing of an incomplete
application and shall state the necessary information or documents to provide a
complete review of the application;
(b) The employer shall provide the additional
information and documents within fifteen (15) days of the notification of an
incomplete application; and
(c) If
the employer fails to provide the requested information, the application shall
be denied.
(2)
(a) Within sixty (60) days of receipt of a
complete application, the office shall issue a written statement to the
applicant approving or denying the application; and
(b) If the application is denied, the written
notification shall specifically state the reasons for the
denial.
(3) The
notification of approval or denial shall be mailed by certified mail, return
receipt requested to the address listed on the application.
(4)
(a) If
an employer, who has been certified to have a drug-free workplace program,
discontinues or fails to maintain its program in compliance with this
administrative regulation, the office shall revoke the employer's
certification.
(b) The office shall
submit written notification of the revocation which shall:
1. Include specific reasons for the
revocation; and
2. Shall be mailed
by certified mail, return receipt requested, to the address listed on the
employer's certification.
(5) Service by certified mail shall be
complete:
(a) Upon delivery of the
notification;
(b) Upon acceptance
by any person eighteen (18) years or older at the employer address;
(c) Upon refusal to accept by a person at the
employer's address;
(d) Upon the
U.S. Postal Service's inability to deliver the notification if properly
addressed; or
(e) Upon failure of
the applicant to claim the notification prior to its return to the office by
the U.S. Postal Service.
(6) The return receipt or envelope shall be
proof of acceptance, refusal, inability to deliver, or failure to claim the
envelope.
Section 8.
Denial or Revocation of Certification.
(1) If
an employer's application for certification is denied or revoked, an employer
may request, in writing, a hearing before the executive director on the denial
or revocation of certification;
(2)
The request for a hearing shall be filed with the office within twenty (20)
days from the date of the notice of denial or revocation;
(3) Upon receipt of a request for a hearing,
the executive director shall issue a notice of hearing to be held no sooner
than ten (10) days and no later than thirty (30) days after the request unless
agreed to by the parties;
(4) No
later than thirty (30) days after the hearing is closed, the executive director
shall issue a written order concerning all matters addressed at the hearing;
and
(5) The executive director's
final order may be appealed to the Franklin Circuit court in accordance with
KRS
13B.140.
Section 9. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) Form DFW, "Applicant's
Affidavit: Drug-Free Workplace Program", (Sept. 2007 edition); and
(b) The "Medical Review Officer Manual for
Federal Agency Workplace Drug Testing Programs", issued by the Department of
Health and Human Services, November 1, 2004 edition (DHHS Publication No.
(Administrative Regulation) 88-1526).
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Office of Workers'
Claims, 657 Chamberlin Avenue, Frankfort, Kentucky 40601, Monday through
Friday, 8 a.m. to 4:30 p.m.
STATUTORY AUTHORITY:
KRS
304.13-167